Congressman King and the 14th Amendment

One of my least favorite Congressmen, Steven King, 5th District, Iowa, is slated to become the chair of the House Judiciary subcommittee on immigration. Mr. King is talking about a legislative repeal of the 14th Amendment provision for “birthright citizenship,” arguing that the drafters of the Amendment did not contemplate extending citizenship to foreigners who were not lawfully in the country, or to any but former slaves, for that matter. One might argue that Mr. King is simply ginning up a campaign issue for when Senator Grassley or Senator Harking (both of whom are well past middle age) finally hang it up. He has done well so far beating the xenophobia drum and is one of the leaders of the effort to cleanse the Iowa court of people who think that the equal protection clause of the Iowa Constitution applies to homosexuals as well as heterosexuals.

In any event it seems hard for me to imagine that the drafters of the 14th Amendment meant anything but what the Amendment clearly says. Particularly in view of the history of immigration to the United States and the naturalization of citizens.

As I understand the situation until the adoption of the 14th Amendment the principal restriction on citizenship was the Naturalization Act of 1790, which essentially said “white folks only,” and that there was no meaningful restriction on immigration as opposed to citizenship. The earliest restriction on immigration appeared in The Paige Act of 1870 that restricted Chinese immigration of contract/coulee laborers and women (on the rational that almost all Chinese women were not wives and daughters but whores and potential whores). It is worth noting that the Paige Act post-dated the 14th Amendment.

It is also my understanding that “birthright citizenship” was a hallmark of British/English law – if you were born here you are a subject of the crown, and that the Act of 1790 was aimed at ending that practice in the new United States in-so-far as it applied to non-European migrants, that is, Black Folks. It seems pretty clear that the drafters of the Amendment understood that they were repealing the Act of 1790 and its progeny as well as the Dred Scott case

So, does Mr. King have something to hang his hat on or, as I am inclined to think, is he simply engaging is a bit of self-glorifying demagoguery, and fear mongering?

I think it’ll be almost impossible to repeal, but if we want to look at the historical context, the citizenship right did not originally extend to Indians, so it didn’t include “everyone” born in the US. But I would ask… did we even have immigration laws then? Was it possible for someone to be in the US illegally?

I’ve read that the addition of “and subject to the jurisdiction thereof” was meant to prevent foreigners, such as the children of Ambassadors born in the US, from being granted automatic citizenship.

Also, there seems to be something fundamentally unjust to be able to receive a benefit (like US Citizenship) by breaking the law.

It’s not relevant what they meant, is it? I mean, if you’re amending their language, then you’re amending their language. Seems the correct question would be, “What do we want our policy to be?”

“Legislative Repeal of an Amendment” isn’t a real thing, right?

As is usually the case in debates over “original intent”, it turns out that the people who voted on the amendment were not in fact a hive mind, and there wasn’t really any solitary “original intent”. According to the wikipedia article on the Citizenship clause, some senators, including the author, felt it excluded foreigners while other pro-14th Amendment senators thought it would include all foreigners.

In anycase, the courts seemed to have already decided the issue. I don’t think “legislative repeal” is really going to make a difference.

I don’t think fetuses can break the law.

Yes, and I assume that is because they are considered to be here just temporarily. IOW, they didn’t immigrate here. But again, I don’t really know what you had to do to immigrate at the time when this amendment was written other than just show up at the border and come in.

Oddly, the issue may come to a head not because of Mexican illegal immigrants, but because of Chinese here on tourist visas deliberately planning to have their babies born in the US. NPR did an article about the booming business of Chinese women doing exactly that. They don’t even want to immigrate here-- they just want to have their kids have that option later in life. It’s also a way to get around the 1 child policy, as children born outside China don’t count.

What law does a newborn break?

Did too - the Indian nations weren’t part of the US at the time.

SG, I think you know the answer to your own question.

If he’s trying to pass a law, which is what I think he is proposing, then he’s not amending the constitution. I suppose what he is doing, in his mind, is legislatively fleshing out the language of the 14th amendment. I wonder how much that will impress the courts.

The important question is whether there it is possible to have a Congressman King who isn’t an assclown. After all, there is this guy as well as Congressman Peter King, R, from the Maze Prison District of NY, representing all murdering terrorist scum in the US, provided they are (a) catholic and (b) murder British people not Americans.

I see neither of us is working today. Happy pre-Thanksgiving.

Perhaps just what was in the mind of the Radical Republicans and War Democrats who put the Amendment together following the Civil War, the Congress that passed it and the state legislatures that ratified it doesn’t matter all that much to rational thinkers. The problem is that Congressman King is using a claim that the intent of the drafters was not to extend the right of citizenship to the native born offspring of illegal immigrants, the inclusive language of the Amendment notwithstanding. Since there didn’t seem to be any legal restrictions on immigration until the Act of 1870, and that to Chinese only, how could the drafters have any exclusionary intent at all save those recited in the Amendment itself (Indians not taxed – which would appear to cover the Teton Sioux) and the apparent intent to repeal the Act of 1790 and override the 1857 Supreme Court decision?

Assuming such a bill has no chance of getting Congressional approval, let alone getting past a Presidential veto, just what is Congressman King trying to accomplish here? Is there a non-culpable explanation? If Mr. King is standing on principle, what is the principle?

Or is Mr. King simply second guessing the drafters, saying that if the drafters had known or the terrible terrible things that would happen because lots of Brown People from South of the boarder could spawn offspring who would automatically, as a matter of law, be US citizens then the drafters would have explicitly excluded those people. If this is his approach, is it defensible?

As I said before, I don’t care for this guy and think he embodies all that is ignorant, parochial and insular about my home state.

There’s an excellent analysis in Wong Kim Ark which makes it pretty clear that the intent was always to grant citizenship by birth:

So if he’s standing on principle, it’s unclear to me WHAT principle.

It’s one thing for the legislature to “flesh out” a constitutional provision before the courts have ruled on it. Unfortunately, Congressman King appears to have missed the boat (reference unintentional) by about 110 years here.

Well, good thing your home state saw fit to send him off somewhere else so he couldn’t do any damage. :smiley:

I believe it could be most concisely stated as, “fuck them Mexicans”.

So what was the earliest known case of judicial expulsion from the U.S., i.e. a formal deportation order?

“There’s *votes *in them thar hills.”

The 13th, 14th and 15th admendments were clearly meant to address slavery and reverse the process.

When people tried to use the amendments to say that the draft is “involuntary servitude”, the Supreme Court simply said “Sorry ain’t gonna work.” But if you read it word for word, it should kill the draft. After all the amendment came LATER so it should change the original constitution if taken literally. But the courts ruled these amendments were to fix the slavery situation.

Then little by little they were expanded to include all sorts of other things.

Now today it matters what the intent was, you have to deal with it.

It worked OK for George Washington, Samuel Adams, Paul Revere, all them folks.

Does Rep. King believe in similarly narrow readings of the First & Second Amendments? And given that the Chief Justice & the Supreme Court clearly read those expansively, does this kind of narrow reading of the Constitution have any hope in the present environment?

Well, I suppose that’s better than a clown who lives in the sewer and eats children.